Government Documents Released In Connection with Case Challenging TPS Terminations

White House Pressured DHS to Terminate TPS

On November 3, 2017, on the eve of major TPS decisions for Nicaragua and Honduras that were due November 6, the White House convened a Cabinet-level meeting to pressure then DHS Secretary Duke to terminate TPS for Haiti and three Central American countries. In a Discussion Paper produced by the White House National Security Council, the White House affirmed its position that “[i]n the cases of El Salvador, Honduras, Nicaragua and Haiti, the temporary conditions that arose out of natural disasters and supported TPS designations have long ceased to exist.” The White House urged the DHS Secretary to “[t]erminate” TPS for these countries “and engage Congress to pass a comprehensive immigration reform to include a merit based entry system.” (Only two of the four countries had imminent TPS deadlines.) Exhibit 14—DPP 3566-81. (Exhibit 85—Nealon Dep. II 340:1-6, 348:2-23. Defining Principals Committee meeting and authorship of Principals Committee documents.)Duke’s personal notes from the Cabinet meeting on TPS confirm that Attorney General Jeff Sessions was present and urged Duke to just “bite the bullet” and terminate TPS”: “no one has [the] guts to pull the trigger.” Exhibit 141—DPP 3562-65.USCIS Director of the Office of Policy and Strategy Kathy Nuebel Kovarik attended the Cabinet-level meeting and, following the meeting, USCIS aggressively pushed for the termination of TPS for Haiti—bypassing the clearance process and seeking an expedited signature from Acting Secretary Duke even though Haiti did not then have an imminent TPS deadline. Exhibit 66.

The Democrats on the Senate Foreign Relations Committee identified that “the White House Domestic Policy Council sought to repeatedly influence the decision-making processes at the State Department and DHS in order to ensure a pre-determined outcome that would advance the Administration’s political agenda on immigration. Exhibit 72.

Acting DHS Secretary Elaine Duke took handwritten notes on two phone calls she received from the White House concerning TPS on November 5, 2017, the eve of the deadline to make a TPS determination for Nicaragua and Honduras. White House National Security Advisor Tom Bossert and Zack argued that the “conditions in 4 countries no longer exist,” referencing not just the two with imminent deadlines but also El Salvador and Haiti—which the White House was urging Duke to terminate at the same time. They argued that “gutless fed[eral] bureaucrats have extended” in the past. They expressed, as the Washington Post also reported, that it would be “extremely disappoint[ing] if [the decision was] kick[ed] into lap of next Sec[retary].”
There was a subsequent call with General [John] Kelly, White House Chief of Staff, on the same day, as reported by the Washington Post and the New York Times—describing “massive pressure” on Duke. Exhibit 11—DPP 2599. Article at Exhibit 28—Washington Post.

Following the public reports—in the Washington Post and the New York Times—about the White House’s pressure on then Acting Secretary Elaine Duke, the White House imposed further pressure on Secretary Duke to publicly deny that she was subjected to political pressure to terminate TPS. Exhibit 135—DPP 3531-33. She ultimately relented, and issued a public denial in which she also stated she had no intention to resign. Exhibit 136—Reuters article. Within a matter of months, Duke had resigned. Exhibit 137—Washington Post article.

Ambassador James Nealon, former DHS Under Secretary of the Office of Strategy, Policy and Plans—who resigned out of “obligat[ion]” in February 2018—said that “the White House was keenly interested in TPS decisions.” He communicated with the White House National Security Council about TPS decisions—and that decision was “communicate[d] … up [the] chain of command.” Exhibit 12—Nealon Dep. 89:24-25, 94:10-17, 212:9-12.

Nealon also confirmed that Trump Senior Advisor Stephen Miller was very involved in conversations around the termination of TPS: “the name that always came up is Stephen Miller.” Amb. Nealon confirmed that Chad Wolf told him “that Steven Miller had been reaching out to him frequently regarding TPS.” The Washington Post had also previously reported that Stephen Miller placed phone calls to DHS Chief of Staff Chad Wolf and Secretary of State Rex Tillerson concerning TPS.
Miller was also communicating with DHS Senior Counselor to the Secretary Gene Hamilton about TPS. Amb. Nealon confirmed that Gene Hamilton raised in meetings Stephen Miller’s position on TPS—and that “[Stephen] Miller favored the termination of TPS.” (Amb. Nealon noted that it was “important information that an important advisor to the President and the White House has an opinion about an important policy question.” Whether factual or not, according to Amb. Nealon, “people believe [Stephen Miller is] close to the President.”) Exhibit 12—Nealon Dep. 155:18-160:1, 224:9-225:23. (Washington Post article at Exhibit 71.) Exhibit 85—Nealon Dep. II 287:16-300:22. More on Miller’s role in the Administration at Exhibit 25—Politico article.

The Washington Post also reported, and Amb. Nealon confirmed, that White House Chief of Staff John Kelly “called Duke from Asia, where he was traveling with the president, to convey his frustration.” Exhibit 71 (Washington Post article).

The Post article also writes, and Amb. Nealon confirmed, that “Tillerson told Duke that ending TPS ‘was just something she had to do.’” Exhibit 71 (Washington Post article).

In a personal memo to herself, Acting Secretary Duke confirmed the pressure from the White House on her TPS decisionmaking. She affirmed that “The TPS program must end for these countries soon…This conclusion is the result of an America first view of the TPS decision.”
In the same memo, Duke also highlighted a “recommendation” she received “from the National Security Council on November 3, 2017 to terminate with an effective date of January 5, 2019 and engage Congress to pass a comprehensive immigration reform to include merit based entry system”—believed to be the Discussion Paper circulated at the Cabinet-level Principals Committee meeting. Exhibit 29—DPP 3582-84 (confirmed by government attorneys to be a personal memo written by Duke to herself).

On November 6—the day that she made the decision to terminate TPS for Nicaragua, and prolong the inevitable termination of TPS for Honduras—Acting DHS Secretary Duke defended her decision to White House Chief of Staff Kelly, and affirmed that through her decision, she aimed to “send a clear signal that TPS in general is coming to a close”—in a manner “consistent with the President’s position on immigration.” She acknowledged that she believed her actions were consistent with a “strategy to get to the President’s objectives.”
While not terminating TPS for Honduras at that time, she affirmed that she was seeking the “best end” for TPS for Honduras, and noted that “This decision is a strong break with past practice and sends a strong message that this Administration will no longer routinely end [sic—extend?] TPS with little for the statute.”
Only hours after an initial email, she followed up with Kelly to note that she had also been in touch with White House Homeland Security Advisor Tom Bossert who urged her to change the effective TPS termination date for Nicaragua from 18 months to 12 months—based on “a strategy [she] was not previously aware of.” She accepted his recommendation, cutting thousands of Nicaraguan TPS holders off of legal status six months earlier than she had just agreed. Exhibit 30—DHS RFPD 5.

Tom Bossert confirmed in an email following up with Secretary Duke’s Chief of Staff Chad Wolf that he was advocating for “the 12 month outcome” for Nicaragua, and expressed appreciation that DHS ultimately changed their decision—from 18 to 12 months. He also, again, noted that the White House saw TPS decisions, and public positions, as “signal[ing] . . . the clear need for statutory reform of our immigration system.”Exhibit 119—DPP 1703-04.

In the most notable example of political pressure at the highest level, President Trump described people from countries designated for TPS as “people from shithole countries.” It “surprised and shocked” Senator Dick Durbin: “It was beyond, and the intensity of the president’s feeling, and what he said there, as well as many other epithets during the course of it.”
Sen. Durbin believed that these comments showed a racial bias. According to a New York Times article, Sen. Durbin said he warned Mr. Trump explicitly that excluding Haitians specifically was “an obvious racial decision. . . . Some of the comments he made were clearly racial during the course of that meeting in the White House. They were hate-filled and vile.” Exhibit 97 (New York Times article). (Exhibits 91, 92, 93, 94, 95, 96, 98, 99—other articles about racist language used by Trump.)

DHS Political Operatives Intended to Terminate TPS—Regardless of the Facts, the Law and the Recommendations of Career Personnel and Experts

Key personnel involved in TPS decisionmaking are political appointees who served on the Trump transition team; the DHS “beachhead team”—brought in immediately after inauguration; and/or worked with anti-immigrant hate groups prior to their roles within government.Kathy Nuebel Kovarik, the current USCIS Chief of the Office of Policy and Strategy (OP&S)—the office responsible for TPS recommendations for the DHS Secretary, served on the Trump transition team and was one of the first new hires at DHS in this administration (the DHS “beachhead team”).
Ms. Nuebel Kovarik communicates most often in her work with two people, one of whom is Robert Law, her Senior Advisor who she hired from the anti-immigrant hate group Federation for American Immigration Reform (FAIR) in October 2017. Ms. Nuebel Kovarik largely defers to Mr. Law in his review and editing of USCIS’ TPS recommendations.
Nuebel Kovarik or Law (or Craig Symons, USCIS Chief Counsel) represent USCIS at weekly White House immigration meetings with:
– White House Senior Advisor Stephen Miller;
– John Zadrozny, formerly at the White House Domestic Policy Counsel, then involved in pressuring DHS to terminate TPS, and now a “refugee skeptic” in a key role at the State Department’s Office of Policy Planning;
– Theo Wold, Special Assistant to the President for Domestic Policy;
– Morgan Hunter;
– David Whet[more], White House Immigration Advisor; and
– Chad Mizelle, counsel to the Deputy Attorney General, among others.
(These are likely the same meetings described by Politico as “replac[ing] the usual interagency process.)
Others with a significant role in TPS terminations also served on the Trump transition team; many of these were also part of the DHS “beachhead team.” As reported by Nuebel Kovarik, those on the Trump transition team’s immigration cohort included:
– Gene Hamilton, previously Senior Counselor to the DHS Secretary, now in a similar role for Attorney General Jeff Sessions, and the self-described “lead” on immigration policy for the transition team, responsible for drafting the Administration’s “day-one book” of immediate proposed reforms;
– Lee Francis Cissna, the current head of USCIS, who notably struck “nation of immigrants” from USCIS’s mission statement;
– Dimple Shah, at the DHS Office of General Counsel;
– Lora Ries, head of the USCIS External Affairs Directorate;
– John Zadrozny;
– Tracy Short, ICE Principal Legal Advisor; and
– Julie Kirchner, Director of FAIR for ten years, and currently the USCIS Ombudsman.
As publicly reported, this also included Kris Kobach, Kansas Secretary of State and the architect of Arizona’s SB 1070, and Danielle Cutrona. Exhibit 18—Nuebel Kovarik Dep. 38:16-40:18, 45:13-46:25; 58:19-22; 68:22-70:8; 108:16-25; 111:11-24; 137:8-16.

Robert Law, Senior Advisor to the USCIS Director of the Office of Policy and Strategy, was a co-Government Relations Director at FAIR and the co-author of a FAIR report on Immigration Priorities for the Presidential Transition immediately prior to joining USCIS. Among the report’s relevant recommendations were limiting legal immigration, including TPS, and “revok[ing] TPS for any country that has received more than two renewals. Exhibit 23—p.14-16. More on FAIR involvement in the Administration and the organization’s believes at Exhibits 21 & 22.

After just being appointed as Senior Advisor to the Director of USCIS Office of Policy and Strategy, Robert Law revised a recommendation memo regarding Haiti to get to “the conclusion we are looking for.” (Until October 2017, Law was a director of anti-immigrant hate group Federation for American Immigration Reform.) After editing the memo, Law confirmed: “I made the document fully support termination.” Exhibit 3—DPP 3349-50.

Political appointee Kathy Nuebel Kovarik (USCIS Director of Policy and Strategy) told career staff that she needed recommendations revised to support the conclusion she intended to recommend: “The problem is that it reads as though we’d recommend an extension b/c we talk so much about how bad it is, but there’s not enough in there about positive steps that have been taken since its designation.”
A career subject matter expert replied that the country conditions are what they are, and the “standard metrics” that they have always used do not support termination of TPS. He concluded that the only way to make the case for termination is to change the review process: “We can comb through the country conditions to try to see what else there might be, but the basic problem is that it IS bad there [with regard to] all of the standard metrics. Our strongest argument for termination . . . is just that it is not bad in a way clearly linked to the initial disasters prompting the designations. We can . . . try to get more, and/or comb through the country conditions we have again looking for positive gems, but the conditions are what they are.” Exhibit 2—DPP 3139-45.

Subject matter experts warned that the termination of TPS for Sudan conflicted with country conditions on the ground—and that the only way to provide a public justification for the termination would be “par[e] down” any explanation of the country conditions. Any elaboration of only the more positive country conditions—as the political appointees urged—“could open us to the charge we cherry picked country conditions.”:
“The country conditions are what they are. If they’re uncomfortable with the termination conclusion following from them, and they want to stick with that conclusion, we propose paring down that section to simply the statutory language or that plus one, simple sentence highlighting the primary conditions animating our decision. Providing sanitized country conditions in a public-facing document would open us to the charge that our account is lopsided and invite criticism.” Exhibit 6—DPP 3149-76. (Aug. 31, 2017, 12:39pm.)

Political appointee Kathy Nuebel Kovarik revised memoranda on TPS for Central American countries to align with the DHS and USCIS changed interpretation of TPS statute—permitting only a review of the original reason for the designation—and modified language to downplay disasters: “change ‘disasters’ throughout to ‘challenges.’”Exhibit 4—DPP 3192-96.

From the beginning of this Administration, Gene Hamilton, Senior Counselor to the DHS Secretary, was a central figure in this Administration’s policies with regard to TPS. In May 2017, prior to the first TPS decision of the Administration, the USCIS Director suggested a meeting between himself, the Deputy DHS Secretary and Gene Hamilton concerning TPS determinations. From March 2017, Hamilton expressed “concerns … on TPS in general.” Exhibit 13—DPP 2960-64. Exhibit 128—DPP 4206-10. More on Hamilton’s role in the Administration at Exhibit 24.

Gene Hamilton, Senior Counselor to the DHS Secretary, removed “examples of human rights violations” from the draft Federal Register Notice announcing the termination of TPS for Sudan. A career subject matter expert recognized that this will be “read as taking another step toward providing an incomplete and lopsided country conditions presentation to support termination, which may increase the likelihood of criticism from external stakeholders to that effect.” Exhibit 5—DPP 3177. Even the DHS Office of General Counsel expressed concern that “country conditions were over-trimmed, particularly regarding governmental human rights abuses.” Exhibit 130—DPP 7086-89.

Current USCIS Director Francis Cissna reviewed a signed Sudan Decision Memo – with the analysis drafted by career personnel and the recommendation tacked on afterwards by political appointee Kathy Nuebel Kovarik – and wrote, “This memo reads like one person who strongly supports extending TPS for Sudan wrote everything up to the recommendation section, and then someone who opposes extension snuck up behind the first guy, clubbed him over the head, pushed his senseless body out of the way, and finished the memo. Am I missing something?” This was 48 hours before Acting DHS Secretary Duke authorized the termination of TPS for Sudan—and the memo was frantically changed multiple times at the eleventh hour. Exhibit 1—DPP 471-72.

DHS sought to coordinate joint decisions on TPS for El Salvador, Haiti, Honduras, and Nicaragua (misstated in emails as Guatemala). This is entirely atypical as the countries had different deadlines for decisions, different country conditions and different reasons for designation. Nuebel Kovarik also explicitly added information on the original designation to support a new and different interpretation of the TPS statute, and planned to actively solicit advice of the White House Domestic Policy Council. Exhibit 42.

On October 31, 2017, James Nealon, the head of the DHS Office of Policy, and former Ambassador to Honduras, provided a written recommendation urging the extension of TPS for Honduras, Nicaragua and El Salvador. His recommendations were ultimately ignored. Exhibit 113—AR-Nicaragua-2-4.

DHS Changed the Interpretation of the Statute to Support TPS Terminations

Ambassador James Nealon, former DHS Under Secretary of the Office of Strategy, Policy and Plans—who previously served as U.S. Ambassador to Honduras—affirmed that “successive administrations had renewed TPS for Honduras long after the conditions that resulted from Hurricane Mitch had begun to dissipate or had dissipated.” He identified that a particular interpretation of the TPS statute “was an important element in [the] decisions” to terminate TPS—and that “there was a belief among many people in the administration that their hands were tied.” Exhibit 12—Nealon Dep. 217:22-24, 218:9-12, 218:19-25.

In the past, as evident from prior USCIS Decision Memos, the DHS Secretary considered a broad range of country conditions—including explicitly “subsequent compounding environmental disasters” following the original designation. Exhibit 111—DHS-RFPD-987 – 988 (Background/Country Specifics on TPS Designations; document produced by USCIS Humanitarian Affairs, May 16, 2017).

DHS intended to terminate TPS for Haiti in April 2017, under then-DHS Secretary John Kelly, before ultimately extending TPS for six months at this time with an announcement that implied termination was imminent. A Decision Memo justifying termination was announced, and career experts recognized the new rule—only considering originating conditions in TPS periodic reviews—and that it was based on politics rather than facts. In an email message from a TPS expert in the USCIS Office of Policy and Strategy to a senior person in the USCIS research unit responsible for drafting country conditions reports, this decision to terminate was described as “a political [decision] by the [DHS Front Office] and [the Secretary’s] advisors.” He continued: “Their position was that Haiti was designated on account of the 2010 earthquake, and those conditions have significantly improved. The extraordinary conditions Haiti currently faces are longstanding, intractable problems, not ‘temporary’ as the statute requires.” Exhibit 124—DPP 18751.

As early as May 2017, DHS clearly and publicly asserted a changed interpretation of the TPS statute—under this new interpretation, pursuant to the TPS statute, “Congress asked [DHS] . . . to determine whether conditions that led to [a country’s] initial designation [] remain.” Further, “the Secretary is taking a look at the TPS program with a fresh set of eyes to ensure it is administered in the way Congress intended.” Exhibit 17—p. 76. Exhibit 127—DPP 12028-31.

In a congressional hearing on June 6, 2017, then DHS Secretary John Kelly acknowledged that the Administration was looking at TPS differently than past administrations: “I can tell you that things are going better in Central America. . . But no one’s ever looked at it. And I think that’s something – we have to do that. . . Haiti had horrible conditions before the earthquake, and those conditions aren’t much better after the earthquake. But the earthquake was why TPS was—was granted and—and that’s how I have to look at it.” Exhibit 35—pp. 69-71.

In publicly discussing the termination of TPS for Nicaragua, DHS described its interpretation of the statute: “the INA restricts considerations for continuing designation of TPS to the conditions on the ground as impacted by the initial event.”Exhibit 31—DHS-1-659-730.

The Acting Secretary’s briefing notes critiqued the past practice of TPS determinations as “practices that lurch from deadline to deadline, leaving beneficiaries in legal limbo for decades.” Exhibit 39—DHS-1-659-104-05.

In a congressional hearing on January 16, 2018, days after President Trump was quoted as saying—in connection with a recommendation that long-term status be offered to TPS holders—that he did not want people “from shithole countries” in the United States, DHS Secretary Nielsen stated “the law does not allow me to look at the country conditions of a country, writ large. It requires me to look very specifically as to whether the country conditions originating from the original designation continue to exist.” Exhibit 36—pp. 24-26.

In a congressional hearing on April 11, 2018, then DHS Secretary Nielsen stated that “the law really restricts my ability to extend TPS. The law says that if the effects are of the originating event, so that’s a causation issue, do not continue to exist then the secretary of Homeland Security must terminate.” Exhibit 34—pp. 46-48.

The new interpretation of the TPS statute was evident in the USCIS Decision Memos. For instance, the final memoranda recommending the termination of TPS Nicaragua, Haiti, and El Salvador, respectively, provided that “termination is warranted because recovery and reconstruction efforts relating to Hurricane Mitch have largely been completed and current challenges cannot be directly tied to the storm”; “any current issues in Haiti are unrelated to the 2010 earthquake”; and “reconstruction efforts relating to the 2001 earthquakes [in El Salvador] have largely been completed and current challenges cannot be directly tied to damage from the earthquakes.” Exhibit 44—AR-Nicaragua-86-93. Exhibit 45—AR-Haiti-33-39.Exhibit 110—AR-El Salvador-45-51.

In a document drafted May 2, 2018 by the DHS Office of Public Affairs (OPA), and edited by the USCIS International Humanitarian Affairs Division (IHAD), DHS provided an interpretation of the TPS statute at odds with decades of past practice. Entitled “TPS and Following the Law,” the document provides: “When the underlying conditions upon which a TPS designation is based continued to exist, the law requires us to extend the country’s TPS designation. Equally, when the underlying conditions upon which the TPS designation is based no longer exist, the law requires us to terminate the country’s TPS designation. That’s the law.” Exhibit 37.

DHS Altered the Processes and Practices for Reviewing TPS and Excluded Career Professionals from the Process

DHS Office of Policy described the TPS periodic review process as “odd” and “totally weird,” following the State Department’s expressions of concerns about the Sudan Federal Register Notice. Exhibit 58—DPP_507-09.

DHS sought irrelevant information which had not previously been sought for TPS periodic reviews – including criminal history, prior immigration status and access to public benefits. DHS then created justifications for the collection of this information only after the fact—after it had become public. Exhibit 129—DPP 7313-20.

Even high-level officials did not know about the TPS decisions until they were announced. USCIS Director Francis Cissna discovered the final decision on the Haiti TPS termination because of the Public Affairs Guidance notes circulated at the time of the decision being announced publicly. Exhibit 59—FOIA-8-94 – 96; Exhibit 133—DPP 11731-32.

Even the Few Countries which Benefitted from an Extension of TPS Under this Administration Received More Limited Relief

Fewer than 2 percent of those who had TPS at the beginning of this Administration continue to have TPS without an expectation of imminent termination. Various countries, with small populations, which benefitted from an extension did not benefit from a redesignation of TPS—which would have allowed more recent arrivals in the United States from these countries to be granted protection. This is true despite recommendations from career experts and the State Department for redesignations, and ongoing active conflict. Exhibit 138—DPP 15400-07 (Syria). Exhibit 139—DPP 15365-69 (South Sudan).

State Department Relinquished Its Responsibilities Under Political Pressure

Ambassador James Nealon, former DHS Under Secretary of the Office of Strategy, Policy and Plans, highlighted “that the State Department was often very slow and late in getting their materials to the Secretary so that she had sufficient time to consider those materials before making her decision.” Exhibit 12—Nealon Dep. 95:11-15.

According to Amb. Nealon, “the paperwork seemed to be stuck in the policy planning office.” He didn’t know “if that was because they didn’t like the recommendation that had come forward or – if they were putting their own political stamp on it or what. But it seemed unusual . . . that the paperwork seemed to be stuck in that office for such a long time.” He suspected that there was some politicization of the process as “this wasn’t the most consequential decision that Secretary Tillerson would ever have to make. . . [T]his isn’t one that should take a really long time to – for him to sign. And so what that told [him], rightly or wrongly, . . . [was] that politics had entered the game and that the thing had gotten stuck.” Exhibit 85—Nealon Dep. II 381:2-384:8.

The State Department edited their country reports—presumably to comport with the Secretary’s decision—prior to transmission to DHS following a decision by the Secretary of State. Exhibit 83. Exhibit 142—DPP 7343.

In an example of the State Department process being severely politicized in the age of Trump, the draft country conditions report for El Salvador explicitly recommended extension prior to alteration by political appointees. Exhibit 134—DPP 15394-98.

Ultimately, on October 31, 2017, approaching the deadline for TPS determinations for Honduras and Nicaragua, when the White House was engaged in a pressure campaign to urge the termination of TPS for the three Central American countries and Haiti, the State Department provided a cursory “assess[ment] that El Salvador, Haiti, Honduras and Nicaragua no longer meet the conditions required for continued designation” for TPS. It is atypical to group countries together as all were at different timelines and designated for different reasons and it has been reported that these State Department recommendations varied from the country conditions report. They also conflict with the recommendations of State Department personnel in the countries designated for TPS. Exhibit 112—AR-Haiti-31-32. Exhibit 82.

US Embassies Urged Extension of TPS

The US Embassy in El Salvador urged the US government to extend TPS for El Salvador. In its recommendation, the Embassy warned: “The return of this population would be counterproductive to U.S. national interests and is likely to accelerate illegal immigration.” Exhibit 67. The US Embassy in El Salvador also identified that El Salvador would face “significant hurdles” in reintegrating Salvadorans following a termination of TPS, and supporting nearly 200,000 US citizen children. Exhibit 105—DPP 2003-05.

The US Embassy in Honduras urged the US government to extend TPS for Honduras. “Given that most Hondurans who immigrate do so for economic reasons, adding tens of thousands of deportees to an economy that is not prepared to integrate them will only exacerbate the principal cause of irregular migration. This would impose severe burdens on a cooperative but under-resourced [Government of Honduras] and be counterproductive to US interests.” Exhibit 69—DPP 3522.

The US Embassy in Haiti urged the US government to extend TPS for Haiti. “Extending TPS for Haiti is in the national interest. At this time, the [Government of Haiti] is not capable of facilitating the reabsorption of the 59,000 Haitians currently holding TPS in the United States in a time frame of less than several years. Lingering issues from the 2010 earthquake, additional effects of the cholera epidemic, and the aftermath of Hurricane Matthew exacerbate this concern, and a termination of TPS for Haiti would threaten the country’s ability to make needed progress across numerous sectors.” Exhibit 70—DPP 3519.

The Sudan Fiasco: Political Appointees Overrode Career Staff and Dismissed Strong Concerns by the State and Defense Departments

A signed August 17, 2017 Decision Memo for Sudan provided no explicit recommendation at the close of the memo, but did throughout recognize that “the ongoing armed conflict and extraordinary and temporary conditions that supported Sudan’s designation for TPS persist” and that “it remains unsafe for individuals to return to Sudan and that the statutory requirements to designate a country for TPS . . . continue to be met.”Exhibit 40—DPP 174-200.

USCIS career experts provided a similar overview of country conditions warranting extension. For instance: “Indiscriminate attacks on the civilian population (including aerial bombardment) were also reported, but could not be verified due to limitations on access to affected areas placed by the Sudanese government.” Exhibit 89—AR-Sudan-21 – 47.

Nuebel Kovarik tacked an “addendum” onto this Decision Memo—with her recommendation that TPS for Sudan be terminated. To justify this, she cherrypicked examples and misrepresented conditions on the ground. Exhibit 43—1746-50. (Aug. 23, 2017.)

The Nuebel Kovarik “addendum” was included as the USCIS recommendation at the close of the signed August 27, 2017 Decision Memo for Sudan—which included glaring inconsistencies. Exhibit 41—DPP 122-27.

Current USCIS Director Francis Cissna reviewed the August 27, 2017 Sudan Decision Memo – with the analysis drafted by career personnel and the recommendation tacked on afterwards by political appointee Kathy Nuebel Kovarik – and wrote, “This memo reads like one person who strongly supports extending TPS for Sudan wrote everything up to the recommendation section, and then someone who opposes extension snuck up behind the first guy, clubbed him over the head, pushed his senseless body out of the way, and finished the memo. Am I missing something?” This was 48 hours before Acting DHS Secretary Duke authorized the termination of TPS for Sudan—and the memo was frantically changed multiple times at the eleventh hour. Exhibit 1—DPP 471-72. (August 29, 2017.)

Following Cissna’s identification of the incoherence of the Sudan Decision Memo—less than 48 hours before it was due to be signed off on by the DHS Secretary—Hamilton ordered the Memo to be “repackage[d]” and Nuebel Kovarik acknowledged that she was responsible for the error. Exhibit 20—DPP 1736-39. Exhibit 48—DPP 547-48.

Subject matter experts warned that the termination of TPS for Sudan conflicted with country conditions on the ground—and that the only way to provide a public justification for the termination would be to “par[e] down” any explanation of the country conditions. Any elaboration of only the more positive country conditions—as the political appointees urged—“could open us to the charge we cherry picked country conditions.” As one career expert stated:
“The country conditions are what they are. If they’re uncomfortable with the termination conclusion following from them, and they want to stick with that conclusion, we propose paring down that section to simply the statutory language or that plus one, simple sentence highlighting the primary conditions animating our decision. Providing sanitized country conditions in a public-facing document would open us to the charge that our account is lopsided and invite criticism.” Exhibit 6—DPP 3149-76. (Aug. 31, 2017, 12:39pm.)

Senior Counselor to the DHS Secretary, Gene Hamilton, removed “examples of human rights violations” from the draft Federal Register Notice announcing the termination of TPS for Sudan. A career subject matter expert recognized that this will be “read as taking another step toward providing an incomplete and lopsided country conditions presentation to support termination, which may increase the likelihood of criticism from external stakeholders to that effect.” Exhibit 5—DPP 3177. (Sept. 12, 2017.) Even the DHS Office of General Counsel expressed concern that “country conditions were over-trimmed, particularly regarding governmental human rights abuses.” Exhibit 130—DPP 7086-89.

Ultimately, as the career experts warned, the DHS proposed Federal Register Notice – and decision – faced strong criticism. The State Department’s Bureau of Population, Refugees and Migration expressed concern about “significant mischaracterizations” in the proposed Federal Register Notice announcing the termination of TPS for Sudan “that are at odds with the [State] Department’s understanding of circumstances on the ground [in Sudan].” As a result, the State Department was “literally … forced to dispatch [] Foreign Affairs Officers by taxi to the Embassies with virtually no notice to inform the host governments of our imminent announcements.”
The State Department’s Office of the Special Envoy for Sudan and South Sudan similarly expressed that “DHS mischaracterizes the ongoing conflicts in Sudan and has the effect of downplaying the actual situation.”The State Department’s Office of Policy expressed similar concerns: “[W]e do not want to use language that might encourage the Government of Sudan to believe they have the greenlight from the [US Government] to force the return of displaced persons (persons who fled fighting) to return to deadly conflict-affected areas. These areas are places where even well-armed UN peacekeeping forces decline to engage for fear of violence and recent killings of peacekeepers.”
USCIS political appointee Kathy Nuebel Kovarik responded by further downplaying the concerns of the State Department: “We don’t say that the country is perfect.”Exhibit 7—DPP 3039-43 & Exhibit 8—DPP 3186-91. (Sept. 19, 2017.)

The Defense Department’s Director for East/Central/Southern Africa, in the Office of African Affairs, also expressed concern about DHS’s proposed Federal Register Notice terminating TPS for Sudan: “The [Federal Register Notice] statements . . . are a clear departure to past [Department of Defense] messaging on Darfur. . . [W]e want to ensure the messaging is factually accurate, credible and is an integral part of other [US Government] messaging on this issue.” Exhibit 9—DPP 615-16. (Sept. 21, 2017.)

Concerns about the Federal Register Notice announcing the termination of TPS for Sudan led to its withdrawal from publication. Nonetheless, Gene Hamilton, Senior Counselor to the DHS Secretary, rejected State Department criticism about the Sudan Federal Register Notice: “There is nothing legally deficient about the [Federal Register Notice], it is factually accurate, but we can work to mitigate against State’s concerns—many of which are entirely overblown and completely irrelevant to the Acting Secretary’s legal determination under section 244 of the Immigration and Nationality Act.” Exhibit 10—DPP 2051-56.

Haiti: A Political Decision to Terminate TPS

In February 2017, the USCIS research unit (RAIO) highlighted numerous country conditions that remained debilitating for Haiti—Hurricane Matthew, a cholera, a drought, a migrant crisis, and continued displacement from both the hurricane and the 2010 earthquake. Exhibit 15.

In March 2017, career personnel, based on a review of country conditions in Haiti, recommended that TPS for Haiti be extended for 18 months. This recommendation sat for months on the desk of the USCIS Director before being revised—initially to include “options.” Nuebel Kovarik further revised to remove the recommendation of an 18 month extension if extension is granted. Exhibit 47—DPP 2950-55.

A chronology of the Haiti TPS determination decision, at the time that USCIS was recommending an early termination of TPS for Haiti—found in the notes of Nuebel Kovarik—shows the turbulent decisionmaking process—with Hamilton and Nuebel Kovarik changing the recommendation that TPS for Haiti be extended for 18 months to recommending that it be terminated, with over 50,000 Haitians losing their legal status by January 2018.
– On March 2, 2017, USCIS Office of Policy and Strategy (prior to Nuebel Kovarik’s tenure) recommended that Secretary Kelly extend Haiti’s TPS designation for 18 months.
– On March 21, 2017, DHS Senior Counselor Gene Hamilton “request[ed] that USCIS revise [the] decision memo to include options other than extension and that State again be asked to provide an updated recommendation from Secretary Tillerson.”
– On April 3, 2017, USCIS provided a revised decision memo, at Hamilton’s request, with options but nonetheless “assess[es] that an 18-month extension of Haiti’s TPS is warranted.”
– One week later, and only days after Nuebel Kovarik assumed leadership of USCIS’s Office of Policy, the USCIS Acting Director signed a decision memo “concluding that termination of Haiti’s TPS designation [was] warranted and recommending [a 6 month] effective termination date.” One week later, on April 17, 2017, USCIS submitted this decision memo and draft Federal Register Notice to DHS. Exhibit 123—DPP 2411.

In seeking to justify a termination of TPS for Haiti, DHS and USCIS political appointees sought irrelevant information about the criminal history, immigration history, and access to public benefits of Haitian TPS holders—for the purpose of making a decision regarding whether to extend or terminate TPS in May 2017. DHS Senior Counselor to the Secretary Gene Hamilton asked for a small briefing, at the request of then Secretary Kelly, regarding TPS. In advance of this meeting, Hamilton asked for staff to collect this information about criminal history, immigration history and public benefits—in secret. (“If you need a specific data set and need to ask someone to pull it, please do not indicate what it is for. I don’t want this to turn into a big thing where people start prodding and things start leaking out.”) Exhibit 84—DPP 1105.

Among the myriad requests for information about Haitian TPS holders on the eve of the deadline to make a decision regarding the Haiti termination, Nuebel Kovarik said, “We should also find any reports of criminal activity by any individual with TPS.” Confirming that this information was being sought explicitly in connection with the decisionmaking process for TPS for Haiti, Nuebel Kovarik asserted, after substantial efforts turned up little detrimental information in response to her request for such data, “the Secretary is going to be sending a request to us to be more responsive. . . [W]e’ll have to figure out a way to squeeze more data out of our systems.” Exhibit 74—DPP 3121. Exhibit 76—DPP 3122-36. Exhibit 79—DPP 3417-30.

In a separate exchange, Nuebel Kovarik confirmed that the Secretary was using this information for his TPS determination of Haiti—setting a tight deadline “[g]iven that the Sec[retary] is going to need this to make a decision.” Exhibit 80—DPP 3393-3405.

Nuebel Kovarik—the politically appointed Chief of the USCIS Office of Policy and Strategy—“aim[ed] to run down personally” certain irrelevant information about Haitian TPS holders: “overstay data from CBP and news stories about Haitian criminals.” Exhibit 75.

USCIS political appointees also affirmatively sought to bolster the expert country conditions report to include positive data about developments in Haiti that would support the termination of TPS for the country. Exhibit 32. Exhibit 76—DPP 3122-36.

On March 22, 2017, USCIS sought a new recommendation regarding the TPS determination for Haiti as the State Department was “under [new] leadership.” Exhibit 51—DPP 1224.

As highlighted in the timeline above, USCIS subsequently recommended the termination of TPS for Haiti on April 10, 2017, with an effective termination date six months later. The memo noted that Secretary Tillerson provided no recommendation, but did not note the recommendation provided by the prior Secretary of State—which was for an 18-month extension. In this recommendation for TPS termination for Haiti—which was leaked previously to the public—USCIS appeared already to be experimenting with a “new rule,” Exhibit 52. (Apr. 10, 2017.)

In a subsequent memo for the Secretary, USCIS included information sought by the Secretary; Gene Hamilton, his senior counselor; and Kathy Nuebel Kovarik—including about the immigration status of people at the time of Haiti’s TPS designation, their criminal histories, and purported positive factors that would justify termination. Exhibit 50—DPP 2956-59 (May 12, 2017).

Country conditions experts – senior leadership at the office that drafts country conditions reports – expressed concern that the interim decision to terminate conflicted with the facts on the ground. USCIS career officials acknowledged that this was a political decision, rather than one based on facts. “We can share more when we talk, but the short answer is that the decision was a political [decision] by the [DHS Front Office] and [the Secretary’s] advisors.” Exhibit 124—DPP 18751.

Only days before the deadline for a final decision, USCIS drafted a Federal Register Notice detailing a six-month extension of TPS – as “another option on top of the three [the Secretary] has before him, i.e., extend, terminate, or re-designate TPS” (emphasis in original). Career officials in the State Department apparently recommended a 12 month extension of TPS for Haiti, but this was never acted on by Secretary Tillerson. Exhibit 53. (May 16, 2017.)

DHS ultimately—in May 2017—granted a 6 month extension of TPS for Haiti, though all signs (including in the Federal Register Notice and in public briefings) showed that DHS was seeking to terminate TPS after the six month period. In a public briefing announcing the DHS decision, DHS misrepresented why they sought information about crime and public benefits after this internal investigation came to light. In response to media inquiries, DHS said “the Secretary asked common sense questions so that he can answer the American people about foreign populations present in the United States, not meant to denigrate any group.” Exhibit 17—p. 76.

Political appointee Kathy Nuebel Kovarik edited the Federal Register Notice with a 6-month extension of TPS for Haiti to foreshadow the imminent termination of TPS by “encouraging Haitians to get their affairs in order.”Exhibit 55.

The ultimate November 2017 decision to terminate TPS for Haiti was already made before any formal review process began. Then DHS Director of Policy “got [the] sense from General Kelly,” who was DHS Secretary at the time, that TPS for Haiti was likely to end as early as April 2017—even though TPS for Haiti had just been extended for six months in late March. Exhibit 12—Nealon Dep. 129:1-24. The formal review process which led to Haiti’s ultimate TPS termination only began in August 2017. Exhibit 33.

In October 2017, the USCIS research unit produced its report on country conditions in Haiti (“TPS Considerations: Haiti”), in which USCIS experts again highlighted numerous and diverse factors which were devastating for Haiti. The report concluded that “Haiti’s recovery from the 2010 earthquake could be characterized as falling into what one non-governmental organization recently described as ‘the country’s tragic pattern of ‘one step forward, two steps back.’’” Exhibit 16—AR-Haiti-46-63.

Major General Jon Norman, Chief of Staff of the Department of Defense’s U.S. Southern Command, also recommended against terminating TPS for Haiti as it “may have near and long term repercussions for Haitian stability.” Among other things, Maj. Gen. Norman attested that “increased humanitarian challenges in the aftermath of hurricanes and other potential future disasters, combined with the effects of lifting TPS, could compound security challenges and exacerbate drivers of illegal immigration.” Further “the return of a large number of Haitian citizens may spur increased illegal immigration flows.” Tellingly, Maj. Gen. Normal warned about grave risks to the country’s stability: “further stresses on the environment increase the risk of triggering an event that necessitates an external intervention to establish order and ability.” Exhibit 116—DHS-RFPD-2416-18. (November 16, 2017.) These and other strong recommendations against termination of course did not affect DHS’s decision to terminate TPS for Haiti.

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